American Control Systems, Inc. “ACS”, sued its former shareholder and employee, Andrew Boyce, for breach of the non-competition, non-solicitation, and non-disclosure covenants in his employment contract. ACS appeals the trial court’s order granting Boyce’s motion for summary judgment, arguing that there remain genuine issues of material fact for the jury, that the trial court improperly reviewed the restrictive covenants under the standard of strict scrutiny, and that the trial court erred in finding that the non-competition and non-solicitation covenants were not enforceable. Because they were ancillary to the sale of a business, we agree with ACS that the restrictive covenants contained in the employment agreement were not subject to strict scrutiny. Accordingly, we reverse the grant of summary judgment to Boyce on ACS’s claim that he breached the covenant not to compete. Nevertheless, notwithstanding that the trial court applied the improper level of scrutiny in determining the reasonableness of the non-solicitation covenant, Boyce established that there was no genuine issue of material fact as to ACS’s contention that he improperly solicited the business of two ACS customers, and we affirm the grant of summary judgment to Boyce on this claim. To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We review a ruling on a motion for summary judgment de novo, viewing the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the nonmovant.1 So viewed, the record shows that Boyce, Kent Bernard, and Ty Howard owned and operated ACS, a computer services company, from 1995 to 2001. In 2001, Barnes Family Holdings, LLC, obtained a 51 percent interest in ACS by purchasing shares from Boyce and Bernard, as well as stock issued by ACS.2 Following the transaction, Boyce and Bernard each retained a 24.5 percent interest in the company. On the same date as the stock purchase agreement, Boyce and ACS entered into an employment agreement pursuant to which Boyce agreed to serve as vice-president and secretary of ACS. Bernard and George Barnes also entered into employment agreements with ACS, with Barnes agreeing to serve as ACS’s chief executive officer. The delivery of the employment agreements, including Boyce’s employment agreement, was a condition precedent to the holding company’s obligation to consummate the stock purchase. Boyce’s employment agreement contained non-competition,3 non-solicitation,4 and non-disclosure covenants.5
Boyce resigned as an employee and vice-president of ACS on January 16, 2006, and received $9,800 in exchange for his stock in the company.6
